FIRST BANK OF NIGERIA PLC & ANOR v. FIRST CITY MONUMENT BANK PLC & ANOR (2013)

FIRST BANK OF NIGERIA PLC & ANOR v. FIRST CITY MONUMENT BANK PLC & ANOR

(2013)LCN/6670(CA)

In The Court of Appeal of Nigeria

On Thursday, the 19th day of December, 2013

CA/L/371/2008

RATIO

WHETHER THE SERVICE OF PROCESS ON PARTIES IS A CONDITION PRECEDENT TO THE EXERCISE OF JURISDICTION BY A COURT

Yes, the service of process on parties, which ensures their appearance and those of their counsel in Court, are foundational conditions to be seen to have been fulfilled before a Court can have competence and exercise jurisdiction over it. Thus, failure to serve a process where service of a process is required renders null and void any Order made against the party who should have been served with the process – see Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97; Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591; & Ngige v. Achukwu (2005) 2 NWLR (pt. 909) 123. In other words, no Court has jurisdiction to entertain any suit in which processes are not served or properly served.

It is also settled that the Court must hear both sides, not only in the case but also in all material issues in the case, before reaching a decision which may be prejudicial to any party in the case – see Kotoye v. C.B.N. & Ors (1989) 1 NWLR (pt. 98) 419, where the Supreme Court added –

“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a lair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem”.

The importance of jurisdiction is that the issue can be raised at any stage of a case, be it at the trial, or on appeal; a Court can even raise the issue suo motu – see Ijebu-Ode L.G. v. Adedeji (1991) 1 NWLR (pt. 166) 136, P. E. Ltd. & Anor v. Leventis Tech, Co. Ltd. (1992) NWLR (Pt. 244) 675 SC, wherein it was held –

“It is desirable that preliminary objection be raised early on issue of jurisdiction; but once it is apparent to any party that the Court may not hove jurisdiction, it can be raised even viva voce .It is always in the interest of justice to raise issue of jurisdiction so as to save time and costs and to avoid a trial in nullity”. Per AMINA ADAMU AUGIE,J.C.A.

JUSTICES

AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. FIRST BANK OF NIGERIA PLC

2. ECOBANK NIGERIA PLC – Appellant(s)

AND

1. FIRST CITY MONUMENT BANK PLC

2. CENTRAL BANK OF NIGERIA (CBN) – Respondent(s)

AMINA ADAMU AUGIE,J.C.A. (Delivering the leading Judgment): This appeal turns on a garnishee proceeding initiated against 2nd Respondent at the Federal High Court. However, the initial Suit that led to the proceedings is Suit No. LD/1477/2005 at the Lagos State High Court between First Atlantic Bank Plc. v. Sormatt Ventures Ltd. & Mrs. Olowokere Olusade Adebowale for a loan facility granted to the 1st Defendant and guaranteed by 2nd Defendant. The Lagos State High Court entered Judgment in favour of First Atlantic Bank for the sum of N10,078,287.78. The 1st Respondent later initiated a Garnishee Proceeding against the Appellants and 4 other banks. The High Court granted a Garnishee Order Nisi on 25/9/2006 against them. The other banks filed their respective affidavits to show cause and were discharged from the garnishee proceedings on 29/10/2007. On that same day, an order absolute was entered against the Appellants and they were ordered to pay the said Judgment debt.

On 9/11/2007, the 1st Respondent commenced a garnishee proceeding against the 2nd Respondent [CBN] via a Motion Ex-parte praying the Court for –

7. AN ORDER that all the debts due and accruing from the Garnishee to the 1st and 2nd Judgment Debtors or so much thereof as may be sufficient to satisfy the Judgment Debt herein, be attached to answer the Garnishee Order recovered against the 1st and 2nd Judgment Debtors by the Garnishor/Applicant.

2. AN ORDER directing the Garnishee to prepare and file before this Hon.Court a Statement of Accounts showing the 1st and 2nd Judgment Debtor’s financial status with the Garnishee as from 6th June 2006.

3. AN ORDER directing the Garnishee to pay all sums in this suit being all debt due or accruing from the 1st and 2nd Judgment Debtors to the Garnishee/Applicant.

The lower Court entered an Order Nisi against CBN on 3/12/2007, and upon being served with the Order, it filed an Affidavit to show cause. However, the lower Court made the Garnishee Order Nisi Absolute against CBN on 6/2/2008.

On 11/2/2008, the Appellants filed two separate Applications seeking for Orders setting aside the Order Nisi and Absolute on the following Grounds –

“TAKE FURTHER NOTICE that the ground for this application is the non-service of the Garnishee Order nisi in Suit No. LD/1477/2005 at the Lagos State High Court on the 2nd Judgment debtor in this case who was the 5th Garnishee in [the said] Suit . AND TAKE FURTHER NOTICE that the Garnishee order absolute in Suit No. LD/1477/2005 at the Lagos State High Court was also not served on the 5th Garnishee (Ecobank), who is the 2nd Judgment Debtor in this case.”

The Applications were supported by similar 19 paragraph Affidavits deposed to by Lawan Fagge, a Legal Officer with the 1st Appellant, and Chika Idigo, a Legal officer with the 2nd Appellant. They averred in their respective Affidavits that –

8. The Garnishee Order Nisi of the Lagos State High Court was never served on [it] to show cause why the Order Absolute should not be made.

9. On 29/10/2007, the Lagos State High Court presided by Hon. Justice A. A. Phillips made the Garnishee Order Nisi, ABSOLUTE against [it].

10. Garnishee Order Absolute of the Lagos State High Court granted on 29/10/2007 was also not served on [it].

11. The Judgment Creditor, First Atlantic Bank Plc. rather instituted another Garnishee Proceeding against CBN the bankers of the present Judgment Debtor for a loan facility that [it] never guaranteed.

12. The present Judgment Debtor became aware of this suit for the first time upon the receipt of a letter from CBN on 4/2/2008 informing [it] of the Garnishee Order Nisi on the CBN. (Letter attached as Exhibit)

It was averred in paragraph 13 that the 1st Appellant “promptly sent memo to its Internal audit Department to confirm the existence of any account(s) in the names of the -Original Judgment Debtors”, and in its paragraph 14 that –

“- – Revealed that the 2 Defendants/Original Judgment Debtors in Suit No. LD/1477/2005 SORMATT VENTURES LTD. and (Mrs. Olowokere Olusode Adebowale) have no accounts with the 1st Judgment Debtor in this Suit as 4th Garnishee in Suit No. LD/1477/2005 at the Lagos State High Court”. (Internal Memo attached as Exhibit)

The 2nd Appellant averred in paragraph 13 that it “sent mails to all its branches database nationwide to confirm the existence of any account(s) in the names of the Original Judgment Debtors in [the said] Suit”, and in paragraph 14 that –

“The response to the mails – – revealed that the 1st Defendant/Judgment Debtor in Suit No. LD/1477/2005 SORMATT VENTURES LTD. has no account with [Ecobank] while the 2nd Defendant/Judgment Debtor (Mrs. Olowokere Olusade Adebowale) has an account No. 0140110107429701 and that the balance has been nil since the year 1998 well before the commencement of Suit. No. LD/1477/2005 at the Lagos State High Court in the year 2005. (Mails from its Head office attached as Exhibits)

Both Deponents further averred in paragraphs 16-17 of their Affidavits that –

16. The institution of Suit No. FHC/L/CS/1045/2007 [at the Federal High Court] against the Judgment debtor without service of the processes of the first Garnishee proceedings at the Lagos State High Court is an abuse of Court processes.

17. It is in the interest of justice for Garnishee Nisi and Garnishee Order Absolute be set aside as the Court locks jurisdiction for lock of service.

The 1st Respondent filed a Counter-Affidavit, wherein the Deponent, one Zainab Kelani, counsel in the Law Firm of Joseph Nwobike, Esq., averred that –

12. Contrary to the deposition in paragraphs 12 and 16 of the Affidavit in support of this Motion, I know as a fact that the 1st and 2nd Judgment Debtors in this suit as 4th and 5th Garnishee in the said suit were aware of the Garnishee Proceedings and the Order of Court but failed and/or neglected to comply with it.

13. I know that it is the enforcement of the Garnishee Order Absolute mode in Suit No. LD/1477/2005 that brought about the Garnishee Proceedings before this Hon. Court in view of the jurisdictional character of CBN under Section 257 of the Constitution.

It also filed a Notice of Preliminary Objection urging the lower Court to strike out/dismiss the Motions on Notice dated 11/2/2008 on the following Grounds-

1. “This Hon.Court, having made the Garnishee Order Absolute on the 6/2/2008, is now functus officio in this suit.

2. There is no other power or jurisdiction on the basis of which the orders sought by the Judgment Debtors can be made”.

The learned trial judge, C. E. Archibong, J., heard arguments on the Appellants’ Applications to set aside the said orders on 20/2/2008, and ruled as follows –

“I do not from what I have heard and upon my reading of order 44 of our Rules see that there is any basis for this Court to revisit the orders Nisi and Absolute it has already made. We are not here to evaluate the proceedings and Judgments of a Court of competent jurisdiction, merely to attach Judgment on an agency under our jurisdiction. All issues of a substantive nature such as the merits of the Judgment and/or carrying of execution of the Judgment are to be dealt with in other jurisdiction. The Applicants are not proper parties to this process as indeed individually does not fall within our jurisdiction in any material issue before this Court. Application is misconceived and hereby dismissed”.

Dissatisfied, the Appellants appealed to this Court with a Notice of Appeal containing two Grounds of Appeal. With the leave of this Court, the Notice of Appeal was amended, and First Atlantic Bank was substituted with First City Monument Bank Plc. as the 1st Respondent in this appeal. Briefs of Arguments were duly filed, and in the Appellants’ brief prepared by F. B. Odesanya, Esq., the following two Issues were formulated for determination in this appeal-

1. Whether despite the failure and or refusal of the 1st Respondent to comply with the service of the Garnishee Order Nisi as provided in Section 83 (2) of the Sheriff and

Civil Process Act and order 44 Rule 3(1) (a) & (b) of the Federal High Court (Civil Procedure ) Rules 2000 the trial Judge can assume jurisdiction to grant the Garnishee Order Absolute dated 7th day of February, 2008.

2. Whether the Appellants are not proper parties in the Garnishee proceedings before the trial Court despite the mentioning of the Appellants as Judgment Debtors in the 1st Respondent’s Motion Ex-parte dated 9th November, 2007 for Garnishee order Nisi and Order 44 Rule 3(1) (a) & (b) of the Federal High Court (Civil procedure) Rules.

The 1st Respondent submitted in its brief prepared by Dr. Joseph Nwobike and Miss Zainab Kelani that the sole issue that calls for determination is simply –

“Whether the dismissal of the Appellants’ Motions on Notice dated 11th of February 2008 is justified in law”.

The 2nd Respondent initially filed a brief prepared by Chief A. O. Mike Dipeolu, wherein he urged this Court to allow this appeal in favour of the Appellants, which is not an acceptable position for a Respondent to take in any appeal. However, at the hearing of the appeal, learned counsel withdrew the said 2nd Respondent’s Brief of Argument” and it will be discountenanced by us.

In my view, the issues formulated by the Appellants amounts to a mere splitting of hairs because this appeal hinges on a very narrow issue of whether the Appellants as Judgment Debtors are proper parties to the said garnishee proceedings, and therefore, had to be served. The issue formulated by the Respondent is more to the point, and I will adopt it in dealing with this appeal.

To start with, the Appellants based their submissions on the provision of Section 83(2) of the Sheriffs and Civil Process Act, which provides as follows ;

“At least fourteen days before the day of hearing a copy of the Order Nisi SHALL be served upon the Garnishee and on the Judgment Debtors.”

And Order 44 Rule 3(1) (a) & (b) of the Federal High Court Rules that says –

“Unless that Court otherwise directs, an order under Rule 1 of this order to show cause SHALL be served.

(a) On the Garnishee personally, at least 15 days before the day appointed thereby for the further consideration of the matter; and

(b) On the Judgment Debtor, at least 7 days after the order has been served on the Garnishee and at least 7 days before the day appointed for the further consideration of the matter.

They contend that the use of the word SHALL in both provisions make service of the Garnishee order Nisi on them mandatory citing Okoh v. The Nigeria Navy (2007) WRN (Vol. 25) 46, Wema Bank Plc. v. Brastem-Sterr (Nig.) Ltd. (2011) 6 NWLR (pt. 1242) 80, NOAC Ltd. v. Ogini (2011) 2 NWLR (pt. 1230) 130 Gbadamosi v. Nigeria Railway Corporation (2007) ALL FWLR (pt. 367) 855 and Lion Bank (Nigeria) Plc. v. Amaikom (2008) ALL FWLR (pt. 417) 51, and Chukwuogor v. Chukwuogor (2007) ALL FWLR (pt. 349) 1154. They argued that though there are inconsistencies in number of days available after service of the Garnishee order Nisi on the Judgment Debtors, it does not affect the substance of the provisions of the sheriffs and Civil Process Act as a statute and not Rules of court; and that the 1st Respondent’s counsel admitted that they were never served since there was no duty imposed on it to serve the Garnishee order Nisi on them and that the said Section 83(2) does not apply.

They submitted that the service of processes on parties is a fundamental condition precedent to a Court’s jurisdiction to hear and determine the suit as any judgment or order given against a party without service is a judgment or order given without jurisdiction and is, therefore, null and void, citing Okoye & Anor. v. Centre Point Merchant Bank (2008) 7-12 SC 1; that the non-service of the Order Nisi on the Judgment Debtors rob the Court of its jurisdiction and renders the Order Absolute granted null and void, citing Gafar v. Govt. Kwara State (2007) 4 NWLR (Pt. 1024) 375, First Bank of Nigeria v. T.S.A. Ltd. (2007) ALL FWLR (Pt. 352) 1719, Eke v. Ogbonda (2007) ALL FWLR (Pt. 351) 1456. They referred us to the position of Garnishee Proceedings, and argued, citing Nwadialo’s Civil Procedure in, Nigeria 2nd Ed., and Green v. Green (1987) 3 NWLR (Pt. 61) 480 that they are not only proper parties but desirable parties, who have interest in and may be affected by payment of the Judgment sum; that Order 44 Rule 3(1) (b) of the Federal High Court Rules recognizes them as parties to the Garnishee Proceedings, who are entitled to service of the Order Nisi; that it is unconscionable and based on wrong proposition for the lower Court to agree with the 1st Respondent that Section 83(2) Sheriffs and Civil Process Act and Order 44 of the Federal High Court Rules do not apply and they are not proper parties to the proceeding before it; and that its decision is, therefore, perverse and an appellate Court has a duty to set aside a perverse finding, citing Civil Design Construction Ltd. v. SCOA Nig. Ltd (2007) 2 SC 175.

The 1st Respondent contends that the issues canvassed were not raised at the trial Court; that they are not necessary parties; that the trial Court is justified to have dismissed their Applications and there is no appeal against the decisions of the lower Court ordering the Garnishee Orders Nisi and Absolute; and that this appeal clearly constitutes an abuse of the process of this Court.

It submitted, citing Rossek v. ACB (1993) 8 NWLR (Pt. 312) 382, Koya v. UBA Ltd. (1997) 1 NWLR (pt. 481) 251, Udom v. E. Mecheletti & Sons Ltd. (1997) 8 NWLR (Pt. 516) 187 that they did not appeal against the decision of the lower court; that the ground upon which they moved it to set aside the order Nisi and Absolute is that both orders in Suit No. LD/1477/2005 was not served on them before the commencement of Suit No. FHC/L/CS/1045/2007, that since the issue of whether or not the orders in the latter suit were not served was not raised at the lower Court; they cannot raise it here, citing A-G, Anambra State v. Onuselogu Ent. Ltd. (1987) 11-12 SCNJ 44, Abaye v. Ofili (1985) 1 NWLR (Pt. 15) 134, Eli Dakur v. Ali Dapal & 2 Ors. (1998) 10 NWLR (Pt. 571) 573, Isulight (Nig.) Ltd v. Jackson (2005) 11 NWLR (pt. 937)631; that an issue of fact, mixed law and fact and law not raised at the trial Court cannot be raised in this Court, citing Ogba v. Onwuzo (2005) 14 NWLR (pt. 945) 331; that since the issue of non-service of the Orders in Suit No. FHC/L/CS/1045/2007 has not been raised and pronounced upon by the lower Court they should not be allowed to raise it here, citing Araka v. Ejeagwu (2000) 15 NWLR (pt. 692) 684 & Isulight (Nig) Ltd v. Jackson (supra); that notwithstanding the fact that service of Court process is linkable to jurisdiction of court, the law is that issue of service or non-service is a matter of mixed law and fact and where non-service was not raised at the lower Court, it cannot be raised in this Court without the leave of this court, citing Oshinowo v. Oshinowo & Anor (2005) All FWLR (pt. 291) 1698, where Ogunbiyi, JCA (as he then was) held as follows –

“- – it is relevant to mention from the onset that this argument was not made an issue at the lower court. Same is therefore being raised in this court for the first time in the absence of reference being made to it anywhere on the record of appeal. The question of service – – is a matter of fact and law. The appeal thereon therefore is that of mixed law and fact and in respect of which the provisions of Section 242 of the Constitution applies. In other words, the appeal ought to be by leave of Court. In the absence of such leave having been either from the lower court or this court, the ground of the appeal predicating the issue so raised is therefore incompetent “.

The Appellants argued in their Reply Brief that issue of service is one of law; that they contested service at the trial court and that the provisions of Section 83 (2) of the said Act and Order 44 Rule 3 (1) (b) of the said Rules were not observed before the Garnishee order Absolute was granted by the trial court as there is no proof of such service in the Record of Appeal so they submitted that the trial court lacks jurisdiction to grant the order Absolute; that the lack of jurisdiction of a trial court can be raised at any time even at the appeal stage, citing – Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 115, NDIC v. CBN & Anor. (2002) 3 SC 1, Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472, Bronik Motors & Anor. v. Wema Bank Ltd. (1983) 6 SC 158; that it is also the law that the issue of jurisdiction can also be raised by suo moto by the Court itself, citing Oloba v. Akereja (1988) 3 NWLR (pt. 84) 508, Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) 414, Oloriode v. Oyebi (1984) 1 SCNLR 390; and that the fact that they were not served with the Garnishee order Nisi was admitted by the 1st Respondent’s counsel and it is the law that facts admitted require no further evidential proof, citing Cappa & D,Alberto Ltd. v. Akintilo (2003) 4 SC (Pt. 11) 1 and N.A.S. Ltd. & Anor v. UBA Plc. & Anor (2005) 7 SC (Pt. II) 139.

Now, the 1st Respondent urged us to apply the decision of this court in Oshinowo v. Oshinowo & Anor (supra) in this appeal, but every case is determined on its own merit and contrary to the situation in Oshinowo’s Case; the records show that the Appellants mentioned at the lower court that they were not served as Judgment Debtors. The proceeding of 20/2/2008 reads –

“Odesanya – We have 2 separate Applications one for each of the 2 Judgment Debtors We in the interest of justice and fair hearing insist on the fact that we were not served as Judgment Debtors as provided under Section 83(2) of the Sheriffs and Civil Process Act, which stipulate that we be served and Order 44 Rule (3) (1) (b) of the Federal High Court Rules 2000. We have been made a party in this matter. Section 36 of the Constitution provides for fair hearing in all matters before the Court. The Court’s jurisdiction to set aside its own order may be invoked in certain instances. In this instance, we were not served the processes of Court”.

The lower Court made no reference to their complaint about not being served, which touches on the issue of its jurisdiction, as the Appellants rightly said. Yes, the service of process on parties, which ensures their appearance and those of their counsel in Court, are foundational conditions to be seen to have been fulfilled before a Court can have competence and exercise jurisdiction over it. Thus, failure to serve a process where service of a process is required renders null and void any Order made against the party who should have been served with the process – see Integrated Builders v. Domzaq Ventures (Nig.) Ltd. (2005) 2 NWLR (pt. 909) 97; Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591; & Ngige v. Achukwu (2005) 2 NWLR (pt. 909) 123. In other words, no Court has jurisdiction to entertain any suit in which processes are not served or properly served.

In this case, the question is whether the Appellants needed leave to raise the issue of non-service of Court process, and I strongly believe that they do not. They may not have set it out specifically as a Ground for their Applications but the law allows them to raise it at anytime, anywhere and in whatever form. They complained to the lower Court but it made no mention of it in its Ruling; that cannot be their fault nor should they be penalized for not seeking leave. They have every right to raise the issue in this Court and do not require leave. Besides, the bone of contention in this appeal is whether as Judgment Debtors, they MUST be served with the said Garnishee Order Nisi and Order Absolute.

The 1st Respondent also says that the lower Court’s decision to dismiss their Applications is justified because a Court of competent jurisdiction cannot review or re-evaluate the Judgment of a Court of coordinate jurisdiction; that the issue of the said Orders not being served on them are matters of fact, which goes to the correctness or otherwise of the decision in of the Lagos State High Court in Suit No. LD/1477/2005; that the Applications in this Suit was based squarely on the error of mixed law and fact by the High Court of Lagos State, and the lower Court is clearly incompetent to grant the prayers sought for them; that they applied to the trial Judge in Suit No. LD/1477/2005 for an order setting aside the said Orders and that Application was equally dismissed by that trial Judge, and they have appealed against that decision to this Court.

It also submitted that whether or not a person is a proper or desirable party to a judicial proceeding is a question of law, and it referred this Court to the minority Judgment of salami, JCA (as he then was) in the case of P.P.M.C. Ltd & Anor v. Delphi Pet. Inc. (2005) I NWLR (Pt. 928) 484 where he stated –

“A garnishee proceeding, although incidental to the Judgment pronouncing the debt owing, the Appellants being judgment debtors are not necessary party to the said proceedings.”

It also referred us to the description of garnishee proceedings by Aderemi, JCA (as he then was) in Re: Diamond Bank Limited (2002) 17 NWLR (pt. 759) 120 –

“That process is known as “attachment of debt”. And it is a separate and distinct action between the Plaintiff/Judgment creditor and the person or body holding in custody the assets of the Judgment-Debt, although it flows from the Judgment that pronounces the debt owing.”

It also cited Nitel Plc. v. I.C.I.C. (Directory Publishers) Ltd. (2009) 16 NWLR (pt. 1167) 355, and contends that the combined effect of the above decisions and the provisions of Section 86 of the Sheriffs and Civil Process Act is that the only parties, who have a right to be heard in the garnishee proceedings, are the Judgment Creditor and Garnishee. We were urged to follow the said decisions.

The Appellants argued in their Reply Brief that the 1st Respondent has evidently misunderstood the minority judgment of Salami JCA (as he then was) in P.P.M.C. Ltd & Anor v. Delphi Pet. Inc. (supra), which is at best an obiter dictum with no legal force to make it binding as compared with ratio decidendi, which is the principle of law upon which a particular case was decided, and they referred us to the following cases on ratio decidendi – Omega Bank Plc. v. Govt. of Ekiti State (2007) All FWLR (pt. 386) 658 @ 687, Dalhatu v. Turaki (2003) 15 NWLR (pt. 843) 310, Duke v. Global Excellence Comm. Ltd, (2007) 5 NWLR (pt. 1026)81 and Dairo v. U.B.N. Plc (2007) 7 SC (Pt. II) 97 @ 149-150.

Without mincing words, I need to make some points quite clear. Firstly, this Court has no business with the decision of the Lagos State High Court in Suit No. LD/1477/2005. The Appellants complied Additional Records of Appeal containing the record of proceedings in that Suit, which is of no relevance to us in this appeal because the law is firmly settled that an appeal is an invitation to a higher Court to review the decision of a lower Court whether on the proper consideration of the facts and the applicable law, that Court arrived at a correct decision – see Oredeyin v. Arowolo (1989) 4 NWLR (pt. 114) 172.

An appeal is, therefore, not a new action; it is a continuation of the matter that is the subject of the appeal. It is a complaint against the decision of a lower court, and the complaint itself must be relevant to the said decision. In this case, the 1st Respondent obtained Judgment in Suit No. LD/1477/2005 at the Lagos State High Court. It is after it obtained an order Absolute from that court against the Appellants that it proceeded to the Federal High court to attach their funds in the hands of the 2nd Respondent. We are told that they have appealed to this court against the decision of the Lagos State High Court, and that is ail well and good, but in this appeal we are only concerned with the decision of the Federal High Court in the said Suit No. FHC/L/CS/1045/2007. Any issues arising from suit No: LD/1477/2005 will not be countenanced by us.

What is more, the lower court also has no business with the decision of Lagos State High court in suit No: LD/1477/2005 because as it put it ; “we are not here to evaluate the proceedings and Judgment of a court of competent jurisdiction merely to attach Judgment on an Agency under our jurisdiction”. True enough; a Judgment of a court cannot be subjected to interpretation by a Court of co-ordinate jurisdiction like a deed, a will or an instrument containing rights and obligations of parties – see Gipsrel Inter. Co. Nig. Ltd. v. Eya & Anor. (2010) LPELR-4198 CA [Owoade, JCA] and N.I.M.B Ltd. v. UBN Ltd. (2004) 12 NWLR (Pt. 888) 599 SC, where Pats-Acholonu, JSC, so aptly observed that –

“The theory of justice to which we adhere, rests a priori on the premise that there must be certainty and parties to the legal duel should be in a position to know where they stand at a certain time. A system of law where Judges of the same degree i.e. of co-ordinate jurisdiction make contradictory and inconsistent orders in respect of the same subject matter involving the same parties i.e. each relying on his whims, caprices, prejudice and sometimes a vaulting ego, make nonsense and mockery of the law. The beauty or what I might describe as the romance of the law is that just as stare decisis exercises a restraining influence on our Courts, so too do discipline in the Courts in dutifully adhering to normative order by which Courts of co-ordinate jurisdictions do not sit on appeals on each other, attracts respect of the law”.

What this means is that the lower Court was right to dissociate itself from any issues arising from or relating to the said Suit No. Suit No: LD/1477/2005, and this Court will not entertain any arguments regarding its decision on this point. After sifting the wheat from the chaff, we only have the garnishee proceedings at the lower Court to contend with. A Garnishee proceeding is a judicial process where a Judgment Creditor armed with a Judgment of a Court may recover such debt owed by a Judgment Debtor from a third party, who in turn has an obligation to the Judgment Debtor – see U.B.N. Plc. v. Boney Marcus Ind. Ltd. (2005) 13 NWLR (pt. 943) 654 at 666 SC, where Akintan, JSC said –

“Garnishee proceedings are a process of enforcing a money Judgment by the seizure or attachment of the debts due or accruing to the Judgment Debtor, which form part of his property available in execution. It is, therefore, a species of execution of debts for which the ordinary methods of execution are inapplicable. By this process, the Court has power to order a third party to pay direct to the Judgment Creditor the debt due from him to the Judgment Debtor or as much of it as may be sufficient to satisfy the amount of the Judgment and the costs of the garnishee proceedings”.

The third person indebted to the Judgment Debtor is called the garnishee while the Judgment Creditor is also referred to as the garnishor. The process is instituted in Court through an Ex-parte Motion by the Judgment Creditor applying to the Court for an order attaching the said sum, the order nisi is then served on the garnishee and the Judgment debtor; if the garnishee fails to refute the claim that he has an obligation to the Judgment debtor, the Court may then order that the order nisi be made absolute – see U.B.N. Plc. v. Boney Marcus Ind. Ltd. (supra), where Akintan, JSC, further explained as follows –

“Applications for garnishee proceedings are made by the Judgment Creditor and the orders of the Court usually come in two steps. The first is a garnishee order nisi. Nisi is a Norman-French word and it means “Unless”. It is, therefore, an order made at that stage that the sum covered by the Application be paid into Court or to the Judgment Creditor within o stated times unless there is some sufficient reason why the party on whom the order is directed is given why the payment ordered should not be made, If no sufficient reason appears, the garnishee order is then made absolute and that ends the matter in that the party against whom the order absolute is made is liable to pay the amount specified in the order to the Judgment Creditor”.

The only axe to grind in this appeal is whether Appellants as Judgment Debtors had to be served with the orders Nisi and Absolute made by the lower court. There are two schools of thought on this issue -that a Judgment Debtor being just a nominal party does not have to be served and that being a party to the garnishee proceedings, he has to be served with the orders Nisi and Absolute. In P.P.M.C. Ltd. v. Delphi Pet. Inc. (supra) Salami, JCA (as he then was) stated –

“A garnishee proceedings although incidental to the Judgment pronouncing the debt owing, the Appellants being Judgment Debtor are not necessary party to the said proceedings. The procedure whereby the Judgment Creditor obtains the order of the Court to attach from any within the jurisdiction of the Court assets of Judgment Debtor to satisfy the Judgment debt is described as attachment of debt and is one of several methods of executing judgment.

The proceedings for this separate and distinct action is between the Respondent and the G.T.B. Plc, the Garnishee which has not appealed the said decision. Since the Appellants were not parties to the garnishee proceedings their being allowed to participate in proceedings that was purely and distinctly a matter between the body in custody or possession of the Appellants’ assets and the Judgment Creditor, they cannot qualify as an aggrieved party. The Appellants were not a competent party to the garnishee proceedings notwithstanding the learned trial Judge inadvertently making the order nisi absolute in a proceeding where Appellants were party”.

This was a dissenting Judgment by Salami, JCA (as he then was), and the law is settled that a dissenting Judgment, however powerful, learned and articulate, is not the Judgment of the court and, therefore, not binding. The Judgment of the Court is the majority judgment, which is the binding Judgment. see Orugbo v. Una (2002) 16 NWLR (pt. 792) 175, Daggash v. Bulama (2004) 14 NWLR (pt. 892) 144, FGN v. Zebra Energy Ltd. (2002) 18 NWLR (pt. 798) 162. The Appellant is right; the dissenting Judgment of Salami, JCA (as he then was) in P.P.M.C. Ltd. v. Delphi Pet. Inc. (supra) amounts to a mere obiter dictum, which is Latin for “something said in passing”, and it is a remark made or an opinion expressed by a Judge in his decision “by the way” – that is, incidentally or collaterally, and not directly upon the question before the Court. see Black’s Law Dictionary: 7th Ed. However, his standpoint is the prevailing view.

In the case of Nitel Plc. v. I.C.I.C. (Directory Publishers) Ltd. (supra), cited by the 1st Respondent, Omoleye, JCA, toed the same line, and held that –

“A garnishee proceeding is a process leading to the attachment of debt owed to a judgment debtor by a third party who is indebted to the judgment debtor.

The proceeding is strictly between the judgment creditor and the third party who is indebted to the judgment debtor. It is not a proceeding against the judgment debtor directly. The law is therefore trite that a Garnishee proceeding can only be commenced where a valid judgment had been obtained and same subsists. The only way by which a garnishee order absolute can be set aside is by appealing against it. –

Having found that the judgment debtor is a total stranger to a garnishee proceeding, especially after a garnishee order absolute has been made, it becomes manifestly clear that he cannot be heard on it except in a proper appeal”.

In UBA v. Ekanem (2010) 6 NWLR (Pt. 1190) 207, Orji-Abadua, JCA, stated –

“-A Judgment Debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the Judgment Creditor in satisfaction of the Judgment Debt he is owing to the Judgment Creditor. He is not the one requested to appear before the Court to show cause why the order nisi should not he made absolute. It is only the Garnishee, and, only the garnishee is expected to inform the Court if there is any third pant’s interest in the said Judgment Debtor’s money in its custody. So it is only the Garnishee that is expected to react if the law was not property followed or observed. It is only against the Garnishee that execution under the garnishee proceedings could be levied and not against the Judgment Debtor. The proceedings for this separate and distinct action is basically between the judgment creditor and the garnishee even though the Sheriffs and Civil Process Act requires that the judgment debtor be served with a copy of the order nisi. The judgment debtor is not a necessary party to the said proceedings”.

In his own contribution to the Judgment, Omokri, JCA, reiterated as follows –

“A careful reading of the provision of Section 83 (1) and (2), 85, 86, 87 and 90 of the Sheriffs and Civil Process Act – reveal that the Judgment Debtor has more or less no role to play in garnishee proceedings. A judgment debtor is merely a nominal party whose money in the custody of the garnishee is being recovered by the Judgment Creditor in satisfaction of the judgment debt owing to the judgment creditor.”

However, on other side of the divide, we have the case of Wema Bank Plc. v. Brastem-Sterr (Nig.) Ltd. (supra), where Nwodo, JCA (of blessed memory) said-

“The garnishee is the main party under the statute and should be the one reacting to the proceedings, nevertheless, the judgment debtor must be put on notice of what happens to money due to him in the possession of the garnishee. This service is fundamental in the tight of the principle of being heard in a matter touching on his right.The learned trial Judge erred when she held that the complaint of non-service is unmeritorious. The statutory provision on service is mandatory. Service of the order nisi on Judgment debtor is a condition precedent to the jurisdiction of the court to make an order absolute”.

Two divergent views on one issue, but each case must be decided on its merit, and I intend to do just that. The peculiarity in this case is that the Judgment that stirred things up was obtained at the Lagos State High Court,while the garnishee proceedings that led to this appeal was initiated at the lower Court. On the face of it, I would readily say that they ought to have been served to put them on notice that their funds in the hands of CBN would be attached to service a Judgment debt obtained against them in another Court altogether. But on closer reflection, their Grounds for asking that the Orders be set aside is what will work against them at the end of the day. I will reproduce them –

“The ground for this application is the non-service of the Garnishee Order nisi in Suit No. LD/1477/2005 at the Lagos State High Court on the td Judgment debtor- – AND TAKE FURTHER NOTICE that the Garnishee order absolute in Suit No. LD/1477/2005 at the Lagos State High Court was also not served on the 5th Garnishee (Ecobank), who is the 2nd Judgment Debtor in this case.”

The question we will ask is -what will be the outcome of allowing this appeal? They asked the lower Court to set aside the Garnishee Orders it made because they were not served with the Garnishee orders at the Lagos State High Court. The lower Court cannot look into any questions or issues arising from the suit at the Lagos State High Court, so what will be the point of allowing this appeal. They have a pending appeal against the decision of the Lagos State High Court, and there is nothing the lower Court can do for them in the circumstances. The appeal fails, and it is dismissed. There will be no order as to costs.

RITA NOSAKHARE PEMU, J.C.A.: I had the advantage of reading in draft the lead Judgment just delivered by my brother AMINA ADAMU AUGIE J.C.A.

I agree with the opinion proffered and conclusion.

It is only reasonable, and indeed accords with common sense that, in garnishee proceedings, the Appellants are not necessary parties to the proceedings, simply because the crux of the matter at that stage has to do with the Judgment creditor and the garnishee simpliciter.

However, when it comes to the issue of service, it is my view that the Judgment debtor should also be served, just to fulfill all righteousness. At least he can keep an eye of what happens to money due him, which money is in the possession of the garnishee.

The request by the Appellant that the lower court looks into any question or issues arising from the suit at the Lagos State High Court, cannot hold, because as rightly observed in the lead Judgment, the Appellant has a pending appeal against the decision of the Lagos state High Court.

The appeal is devoid of merit and same is hereby dismissed. I subscribe to the consequential order made as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read the lead judgment just delivered by my learned brother, Amina Adamu Augie, JCA, and I agree with my Lord that the appeal be dismissed.

He has covered all the issues in contention and I have nothing more to add except to emphasize the point that the appellants misfiled at the lower court (i.e. Federal High Court, Lagos). They filed an application to set aside the Garnishee Order Nisi and Order Absolute on the ground that they were not served with the Garnishee order Nisi in suit No. LD/1477/2005 at the Lagos State High Court as well as the Garnishee Order Absolute in the same suit.

The lower court was right to have refused the application because it has indeed no jurisdiction to entertain it. Though in the hierarchy of courts both the Federal High Court and the State High courts are of equal status constitutionally, it ends their because their realm of operation are poles apart. The scenario created here can be likened to taking a State Law to the National Assembly for Repeal or amendment. It is totally impracticable under normal circumstances. What is more, it is rare for a court of concurrent jurisdiction to exercise the power of review or to set aside an order made by another court or judge of concurrent jurisdiction. The proper option is usually for an aggrieved party to exercise his right of appeal where necessary.

For this and the fuller reason contained in the lead judgment, I also hold that this appeal lacks merit and is accordingly dismissed.

I abide by the consequential orders in the lead judgment including that as to costs.

Appearances

F. Odesanya, Esq., with Abiola Lawal, Esq.For Appellant

AND

Dr. Joseph Nwobike (SAN) with Miss Zainab Kelani – 1st Respondent

J. F. Oyelana, Esq. – 2nd RespondentFor Respondent